Criminals who have been mistakenly acquitted of a homicide should be able to be tried again for their crime. A majority in the Dutch House of Representatives decided this on Tuesday 24 January. According to law lecturer Wiene van Hattum of the University of Groningen, Cabinet and House are raising false expectations. ‘This law will not protect society from serious criminals, as is being suggested. It will result in unrest, infringe privacy and encourage careless detection and prosecution.’ Van Hattum will be awarded a PhD by the University of Groningen on 26 January for research on the history of ‘Non bis in idem’ [double jeopardy], the rule that forbids a second trial.
People who are definitively convicted of a homicide can still be set free. That’s what has happened, for example, in a number of well-known cases in the Netherlands, including Ina Post, Lucia de Berk and the suspects in the Schiedammer park murder and the Putten murder case – once new facts came to light, their definitive conviction was declared void. ‘Revision to advantage’ is what this is called. The reverse is never possible: people who are definitely acquitted cannot be tried or prosecuted for the same fact again. Or rather, not yet – the House of Representatives has now decided that there should be an exception to the double jeopardy rule in certain cases.
According to University of Groningen law lecturer Van Hattum, the bill appears reasonable at first sight, but the House has paid insufficient attention to legal security for citizens. Van Hattum: ‘It goes without saying that if a suspect is acquitted of a homicide, and new evidence emerges, then it is hard to accept that no prosecution can be initiated, especially for the relatives. All in all, though, we did not need this new law for that. As long as the guilt of a perpetrator cannot be proved, the Public Prosecution Service does not have to bring the case to court. It’s possible to wait to go to court until there is sufficient evidence. In that sense there’s nothing wrong with our criminal procedure.’
The new law will thus only be needed extremely rarely, Van Hattum expects. It is intended for cases where technological developments enable a better analysis of the evidence. Van Hattum: ‘Proponents of this law constantly refer to the “Vivaldi case”, a robbery during which an Aldi supermarket manager lost his life. The perpetrator was acquitted, and new DNA analysis would apparently now be able to prove his guilt. However, the old DNA analyses also worked against the suspect and he was nevertheless acquitted. Other examples where this law could have been implemented are never cited.’
In the meantime, the new law will make significant numbers of correctly acquitted people seriously insecure, according to Van Hattum. ‘That’s the nub of it, as far as I’m concerned. What the government wants is for the DNA material of everyone who has been definitively acquitted of a deliberate homicide to be stored instead of destroyed, so that it can be analysed again later on. Innocent people, who have already suffered from unjust suspicion, will soon never be rid of that suspicion. It’s not only their privacy being violated, it’s also their individual civil liberties. Actual practice has shown that even if you are innocent, if your DNA is stored with an eye to new investigation, you remain frightened and tense. We should not be allowed to do that to our citizens.’
One danger created by the new law is that the judicial authorities may be less careful when tracking down and prosecuting suspects in homicides. After all, even if someone is incorrectly acquitted, the case can always be reopened at a later date. Van Hattum: ‘Even though the law is intended for specific cases, it does create a second chance for the judicial authorities. This can only encourage less careful detection.’
‘This law raises false expectations and also infringes fundamental rights’, Van Hattum sums up. ‘In addition, there’s no pressing need for this law; they’re taking a sledgehammer to crack a walnut. The House of Representatives has passed the law. I know that the chances are small, but I really hope that the Senate will reject this bill.’
Wiene van Hattum (1952) studied Dutch law at the University of Groningen, where she has been a lecturer in criminal law and criminal procedure law since 1986. She conducts research in the field of international criminal law, detention law and ‘non bis in idem’ [double jeopardy], and organizes monthly meetings between law students and detainees. She is also chair of the Forum ‘humane tenuitvoerlegging gevangenisstraf’ [humane enforcement of prison sentences] and editor of Ontmoetingen [Meetings], the periodical published by the Psychiatric-legal Society ‘Lutje’, which studies psychiatry and criminal law. This week she will be awarded a PhD for a thesis entitled ‘Non bis in idem. De ontwikkeling van een beginsel’ [Non bis in idem. The development of a principle]. See also: the summary of her thesis.
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